Receiving

Question 1

Give 8 examples of circumstantial evidence of guilty knowledge

Answer 1

Lack of original packaging
Mode of payment
Removal of id marks
Receipt of good at unusual place
Receipt of goods at unusual time
Receipt of goods in an usual way
Receipt absent where receipt would usually be issued
Removal of id marks
Purchase at a gross undervalue

Concealment of property to avoid discovery

Question 2

What are the elements of receiving
S246 (1) CA61

Answer 2

Receives
Any property stolen OR
obtained by any other imprisionable offence

KNOWING that property to have been stolen OR so obtained
OR

being reckless as to whether or not the property had been stolen or so obtained

Question 3

Receiving S246 (3) CA61

Answer 3

ACT of receiving any property stolen or obtained by any other imprisonable offence is COMPLETE as soon as the offender has, either exclusively or jointly with the thief or any other person, POSSESSION of, or CONTROL over, the property or helps in concealing or disposing of the property.

Question 4

S246 (4) CA61
Donnelly 246(4)(b)

Answer 4

RETURNED TO OWNER/LEGAL TITLE
NO OFFENCE
a) any property stolen or obtained by any other imprisionable offence has been returned to the owner
Or
b)legal title to any such property has been acquired by any person
A SUBSEQUENT RECEIVING OF IT IS NOT AN OFFENCE, EVEN THOUGH THE RECEIVER MAY KNOW THAT THE PROPERTY HAD BEEN STOLEN OR OBTAINED BY ANY OTHER IMPRISONMENT OFFENCE.

Question 5

S247 (a)(b)(c)

Answer 5

a - exceeds 1000 = 7yrs
b - exceeds 500 under 1000 = 1yr
c - under 500 = 3 months

Question 6

What three elements are required to satisfy the act of receiving

Answer 6

Stolen property or obtained by an imprisionable offence

Defendant must have received that property, which requires that the receiving must be from another person

Defendant receives that property in the knowledge that it has been stolen or illegally obtained or being reckless to that possibility

Question 7

When is the act of receiving complete

Answer 7

complete as soon as the offender has either exclusively or jointly with the thief or any other person, POSSESSION of, control over, the property or helps in concealing or disposing of the property
If their is GUILTY KNOWLEDGE at the act of receiving is complete, then the offence of receiving has been committed

Question 8

What are the rules in relation to the receivers agent or servant having possession of the property

Answer 8

Control of property may still be exercised by a receiver when the property is in the possession of the receiver’s agent or servant, however the exercise of such control must be INTENTIONAL

Question 9

What is the doctrine of recent possession

Answer 9

Allows for prof of theft or receiving by way of circumstantial evidence. Where a person is found in possession of stolen property reasonable soon after the theft, an inference may be drawn that the person in possession either stole the property or received it from the thief
The doctrine applies only if the thief is found in possession of property recently stolen or dishonesty obtained
This doctrine does not apply to concealing or disposing of property

Question 10

What was held in R v Donnelly in relation to being legally possible

Answer 10

Where stolen property has been returned to the owner or legal title any such property has been acquired by any person, it is not an offence to subsequently receive it, even though the receiver may know that the property had previously been stolen or dishonestly obtained

Question 11

What must be proved in relation to control over property at a place

Answer 11

Where property is located at a place over which the receiver has control, the prosecution must prove that the receiver ARRANGED for the property to be delivered there or that on DISCOVERING the property, they INTENTIONALLY exercised control over it . The intent to possess the property must be satisfied

Question 12

Received case law possession

Answer 12

Cox
Possession involves 2 elements
The first is Actual or potential physical custody or control
The second, the MENTAL element is
A COMBINATION of KNOWLEDGE and INTENTION.
Knowledge in the sense of awareness by the accused that the substance is in his possession and an intention to exercise possession

Question 13

Receives possession case law

Answer 13

Cullen
There are 4 elements of possession for receiving
Awareness that the item is where it is
Awareness the item has been stolen
The actual or potential control of the item
An intention to exercise that control over the item

Question 14

Where the property is located at a place the receiver has control what must be proved

Answer 14

It must be proved that the receiver ARRANGED for the property to be DELIVERED there or intentionally exercised control over it

Question 15

When is the offence of receiving complete

Answer 15

The offence is complete when having the required knowledge received the property

Question 16

Received - any stolen property
Case law in relation to returned or title acquired

Answer 16

DONNELLY
stolen property returned to the owner or legal title to any such property has been acquired by any person, it is not an offence to receive it. Even though the receiver may know the property had been previously stolen or dishonestly obtained

Question 17

Property definition

Answer 17

Property includes any real or personal property and any estate or interest in any real or person property, money electricity, and any debt and anything in action, and any other right or interest

Question 18

Any property stolen case law in relation to property received

Answer 18

Lucinsky
The Property RECEIVED must be the PROPERTY STOLEN or illegally obtained (or part thereof) and not some other item for which the illegally obtained property had been exchanged or which are the proceeds

Question 19

OR OBTAINED BY ANY IMPRISONABLE OFFENCE

Answer 19

Likely theft S219(4)
Obtain - obtain retain for himself herself or any other person
May rely on conviction of the thief as proof that the property was obtained by stealing or by any other imprisonable offence

Question 20

Knowing that property to have been stolen or obtained by any other imprisonable offence
Case law

Answer 20

Simester and Brookbanks
Knowing means knowing or correctly believing. The defendant may believe something wrongly but cannot KNOW something that is false
KENNEDY
THE GUILTY KNOWLEDGE TJAT THE THING HAS BEEN STOLEN OR DISHONESTLY OBTAINED MUST EXSIST AT THE TIME OF RECEIVING

Question 21

Does the offender need to know what offence was committed to obtain the property and to be charged with receiving

Answer 21

No

Question 22

OR
BEING RECKLESS AS TO WHETHER OR NOT THE PROPERTY HAD BEEN STOLEN OR SO OBTAINED

Answer 22

Consciously or deliberately taking an unjustified risk
R V CAMERON
The defendant recognised that there was a real possibility that his or her actions would bring about a proscribed result and/or
That the proscribed circumstances existed and
Having regard to that risk those actions were unreasonable